Essentially, this factor asks: was the offense committed one that calls in question the employees ability to continue performing his job? A manager is much more likely to mitigate the discipline of an employee who admits wrongdoing but is honest and apologetic then they will foran employee who tries to deny misconduct and appears dishonest or unapologetic. endstream endobj 50 0 obj <> endobj 51 0 obj <> endobj 52 0 obj <>stream These factors are collectively known as the Douglas factors for the case that articulated them and they are still in use today. [_S>,o)ZyfL_{*4^BOoss%U'jYM^>Ydw%>=z+l'?@_+S]6EO+<=_)^;/ycCwhiE[qsA[]~w_}xxwo~y3boK&rVkOk [6#e|:. This one is pretty self-explanatory. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. 2 It cannot be doubted, and no one disputes, that the Civil Service Commission was vested with and exercised authority to mitigate penalties imposed by employing agencies. COPYRIGHT 2023. For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension. Negligent or accidental incidents will be viewed more favorably than intentional acts. the case of Douglas vs. Veterans Administration, 5 M.S.P.R. If intentional, malicious misconduct, repeated offenses, or misconduct undertaken for personal gain may incur harsher penalties. Can an employee take responsibility, correct their behavior and come back to the job? While not used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases). If you can make a strong enough case the Administrative Judge (AJ) may modify or cancel the discipline in your case. Generally, one of the most important areas in defending a federal employee in these types of cases involves arguing the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case. Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences, Different Types of Adverse Actions Use Different Rules, Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply, Decision-Maker Must Listen and Have Power to Decide, Connecting the Job and the Offense ("Nexus"), Labels are Not Required, but if Used They Must be Proven, How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty, Avoid Facilitating Prohibited Personnel Practices (PPPs), Agency Officials' Substantive and Procedural Errors and How to Fix Them, Identifying Probationers and Their Rights, The Limited Powers of the U.S. Cir. Did the employee have access to a handbook that detailed proper procedure and policy? Be clear, terse, and apologetic. This factor is generally used for purposes of mitigation unless an employee has a past similar disciplinary action. Cir. Once you have a few key factors you should try to collect any supporting evidence that may be helpful, like doctors notes, proof of counseling sessions, etc. This Quick Start Guide covers the following Key Points: 1. A competent attorney canhelp you lower your discipline at the early stages of process all together avoiding the expense of litigating your case later. Factor 8: The notoriety of the offense or its impact upon the reputation of the agency. Factor 2: The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position. Employees who can appeal an adverse action to the Board have constitutional due process rights. In cases of federal employee misconduct, each of these factors must be considered by those who are tasked with determining an appropriate penalty. In that case, the Merit Systems Protection Board (MSPB) set forth 12 factors that should be considered when evaluating the reasonableness of a disciplinary penalty for a federal employee. B !p$p$p$pV0.Au KW !%K i%H+AZ JV i%H+AZ JV,`{%+^ JW`{%+^ JW`{%+xX`{%+^ JW9 8p8?0g# Yes___ No____An employee's length of service and prior work record must be evaluated and be balanced against the seriousness of the offense. \3zn8SJOkRL8=/q1qRZjwBKoL `3e8Zg-?3L#wX|1P)3|\gbi nLY~@WTRSRIG. The first time an employee is Consistency of the penalty with any table of penalties an agency may have . These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. Many federal agencies maintain tables of penalties that detail discipline options for common offenses. The Douglas Factors . See, e.g., Semans v. Department of the Interior, 62 M.S.P.R. Consideration may be given to extending this time limit if you submit a written request stating your reasons for needing more time. endstream endobj startxref The Douglas Factors include: The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated. A deciding official must consider specific factors in determining the reasonableness of the penalty. Sample 1: I have attached the material relied on to support this proposed removal. endobj If the person signed for receipt of the letter include that information. MSPB decision. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Explanation, if relevant: (8) The notoriety of the offense or its impact upon the reputation of the agency. Factor 5: The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon supervisors confidence in the employees ability to perform assigned duties. Starr Wright USA is an insurance agency specializing in insurance solutions for federal employees and federal contractors. Many agencies have tables of penalties and offenses that list common offenses and their typical discipline ranges. On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table. What if I already had anoral reply and theyve issued a decision and misapplied the Douglas Factors? 1999). You neither came to work nor did you call in your absence. Regardless, try to avoid getting into an argument with management over factors. It is often the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations. Ultimately, managers are people too. You need to look at the specifics of your case in light of the twelve factors. For federal employees, understanding of the factors can help when preparing a reply presentation; by taking each factor into account, an employee can present relevant evidence to support their position. Managers should contact the OIG or law enforcement where criminal conduct is suspected or alleged. Misconduct is also considered more severe if it is done maliciously or for personal gain. The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds. For instance, if an employee who works in finance is caught stealing, their supervisor may no longer trust them to handle money. A knowledge of the Douglas Factors is helpful for both federal employees and managers. We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee. ELLU attorneys assist managers and human resource personnel in analyzing misconduct andconsideringappropriate discipline and adverse actions, in reviewing related proposals and decision letters, and defending the agency in appeals challenging adverse actions. For example, a law enforcement officer is charged with enforcing laws. Obtain insurance protection for your career today. Management must issue a notice of the proposed adverse action, setting forth the charged misconduct and the specifications supporting the charge. Non-disciplinary counseling, guidance memoranda, provision of Agency policy to the employee and requiring the reading and signing of certain rules are methods to communicate what are the requirements of conduct in the workplace. 2 0 obj In some instances, however, an employees misconduct will be so severe its obvious they cant be rehabilitated and brought back on the job. You should review the table to make sure that your discipline is in keeping with this table. Your absence was not approved by your supervisor. This guide has beenprepared by an attorney with extensive experience practicing before the MSPB, both as a representative of federal agencies, and as a representative of federal employees. This article covers the Douglas Factors. 502, 508 (1994) (holding that because 31 U.S.C. If an offense results in a loss of trust or an employee isnt willing to be accountable for their actions, managers may not be willing to take the chance. This factor deserves some detailed explanation since it is one of the less self-apparentof the factors. On (DATE), your supervisor had to take time away from her duties to complete your (Specify) assigned project. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. As a result, it is very important for a federal employee to argue all applicable Douglas factors, and provide documentary evidence (e.g. You should not list a factor unless it is relevant. Another example would be an employee who holds a position as a clerk where they regularly handle money deposited by the public and are responsible for balancing small accounts. If you are a unionized employee, typically someone in your bargaining unit will help you argue your case to management at your oral reply. We need to specifically state why there is erosion of supervisory confidence. Lets say you missed a deadline for an important assignment and management has proposed removal. Cir. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor. When these expectations are not met as a result of an employee's misconduct, the reputation of the Agency may be tarnished. Deciding officials should do a Douglas analysis in every case, except when Congress . A Table of Penalties is a list of . The argument in this type of case would be that the Agency has not truly lost confidence in the federal employees ability to perform their duties. Federal agencies may take disciplinary action against employees who engage in misconduct. A final decision will not be made in this matter until your written and/or oral replies have been received and considered, or, if no reply is received, until after the time specified for the replies has passed. Factor 7: "Consistency of the penalty with any applicable agency table of penalties" . The range of penalties described in the Table is intended to serve as a guide to discipline, not a rigid standard, and deviations are allowable for a variety of reasons. It is important to rebut these issues in a Douglas factor defense. Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation. For instance, if a mental health issue or addiction caused problems on the job but the employee has since sought out effective treatment that may be an acceptable alternative. Bk|8AAoq':#@-zSs)@yFAaH=p.GNXQKAr{D$Xjuk.ku u4RunO|zSp :*NPS0EI]9w]qk.9r>?^|xPG/~A}zI}Nw/o~SBE4*8VT?icyyrl9/srOW#L9}%N%NN}L;=+xoiE94f}9qnF~{15 PxBOGy:#/ 527, 8 (2003); Zayer v. Department of Veterans Affairs, 90 M.S.P.R. On (DATE), you were scheduled to report to work at (TIME). So, if your case was publicized or brought shame and negative attention to the agency you can expert a more severe penalty. Has an employee been on the job for a long time? 1985). 1999); see Gaines v. Department of the Air Force, 94 M.S.P.R. The following relevant factors must be considered in determining the severity of the discipline: (1) The nature and seriousness of the offense, and its relation to the employee's . Only those Douglas Factors relevant to each case need be considered. Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. An example of a mitigating factor would be having no prior discipline in a 20 year federal career when applying Douglas Factors #3 and #4. ?Y9"0t@_, l 3bNC+ sj2 *+2UjBu^sW6\ r More significant discipline is referred to as an adverse action, which entails suspensions of more than 14 days, reductions in grade or pay, furloughs of 30 days or less, or removals. If you can present concrete and credible evidence of such mitigating factors, it will go a long way to helping your cause. Reprimand Removal 14 days Removal Removal Alcohol and Drug Related 23. 280 (1981), the following factors may influence the decision as to whether any formal disciplinary action should be imposed at all, or whether such action might be less severe (mitigating) or more severe (aggravating) than the typical range shown in the Table of Offenses and Penalties.